son secking to treat the licence as void was not the licensee nor any one connected with him in interest; he was not taking advantage of any wrong done by himself; nor was he enabling the licensee to do so, which differs the case from Read v. Farr, where the defendant, who sought to take advantage of the tenant's wrongful act, was connected with him in interest; so that, (unless there be a difference between the right of a landlord to consider the lease absolutely void before any expression of his election, and that of a third party to do so,) Roberts v. Davey is no doubt an authority that it is only voidable, in point of law, and with relation to all persons, including the landlord. And if the landlord as well as the tenant must treat it as voidable, no doubt the receipt of rent may operate as a waiver of the forfeiture. Perhaps the true rule may be ultimately held to be, that the effect of the proviso rendering the lease void is only to dispense with entry, and to substitute for it any formal expression of the lessor's election to avoid the lease. On the question what is a sufficient entry where entry is requisite, see Doe v. Pritchard, 5 B. & Ad. 765. Doe v. Williams, ibid. 783. Although acceptance of rent falling due after a forfeiture operates as a waiver, yet acceptance after forfeiture of rent which became due before the forfeiture will not do so. Nor does the lessor waive his right to recover such rent in an action, although the words of the condition may be that the lessor shall have the premises again, "as if the indenture of lease had never been made. The proper construction of such a proviso being, that from the time of re-entry the lessor should have the lease again, as if the indenture had never been made. Hartshorne v. Watson, 4 Bing. N. C. 178. There is some distinction, in respect of waiver, between a condition against underletting and one against assignment; for in the former case, if the lessee underlet, and the lessor accept subsequently accruing rent, so as to waive the forfeiture, still, if the lessee, after the expiration of that term, make another underlease, the lessor may re-enter. Doe v. Bliss, 4 Taunt. 735; but if the lessor were, by acceptance of rent, to waive the forfeiture incurred by the lessee's assignment, there would be an end of the condition altogether, exactly as there would be if he had licensed it. Lloyd v. Crispe, 5 Taunt. 249; 1 Wm. Saund. 288 b. n. x. See 5 B. & Ad. 781. And it has been thought that, even if the lessor were expressly to license the lessee to underlet, still the lessee might incur a forfeiture by making a fresh underlease after the expiration of that licensed; for that the licence would in that case only operate as a suspension of the condition, and a condition may be suspended, though it cannot be apportioned. 1 Wms. Saund. 288, n. s. With respect to what will amount to a breach of such conditions-When the condition was "not to assign, transfer, set over, or otherwise do and put away the indenture of demise or the premises thereby demised, or any part thereof," an underlease was held no breach of it. Crusoe v. Bugby, 3 Wils. 234; but a condition not to "set, let, or assign over the demised premises, or any part thereof," comprehends underleases; Roe v. Harrison, 3 T. R. 425; Roe v. Sales, 1 M. & S. 297; and a covenant not to "let, set, or demise for all or any part of the term," assignments. Greenaway v. Adams, 12 Ves. 395. An assignment by operation of law is no breach of a condition not to assign, er. gr. if the lessee become bankrupt, or the lease be taken in execution, Philpot v. Hoare, 2 Atk. 219; Doe v. Bevan, 3 M. & S. 353; Doe v. Carter, 8 T. R. 57, unless such an event be brought about by the fraudulent procurement of the lessee himself. Doe v. Carter, 8 T. R. 300. See Doe v. Hawkes, 2 East, 481. But the lessor may, if he please, by the insertion of express words for that purpose, render even such an assignment a forfeiture. Roe v. Galliers, 2 T. R. 133; Davis v. Cooper v. Wyatt, 5 Robinson, Wightw. 386. And the landlord re-entering for such a forfeiture is entitled to the emblements. Davis v. Eyton. Marriage does not operate as a forfeiture. Anon. Moor, 21. Whether a devise be a breach of the condition not to assign, has been disputed. Fox v. Swann, Styles, 483; Dumpor v. Symons, Cro. Eliz, 816; Berry v. Taunt, ib. 331. And see some observations in Doe v. Bevan, 3 M. & S. 353. It has been thought that if executors and administrators be not expressly named in the condition, an assignment by them would not create a forfeiture. Anon. Moor, 21; Seers v. Hind, 1 Ves. J. 295; but the mention of assigns includes administrators, for they are assigns in law. Moore's case, Cro. Eliz. 26. See Cox v. Browne, Cha. Rep. 170. A general condition not to assign, inserted in a lease, to a man "and his assigns," was considered in Strickley v. Butler, Hob. 170, to be void for repugnancy, though it was admitted that a condition against assignment to a particular person would, even in such case, be good. But the former part of the above doctrine has been denied. Dennis v. Loring, Hard. 427; and in Wetherall v. Geering, 12 Ves. 511, the Master of the Rolls said, that assigns would in such a case be taken to mean such assigns as the lessee might lawfully have, viz. by licence, and that there was no repugnancy. A court of equity will not relieve against the forfeiture occasioned by breach of a covenant not to assign, for it could not place the parties in statu quo; and besides, such a forfeiture must always be incurred by the wilful act of the lessee, and cannot be the result of accident, which seems to be the true foundation on which equity supports itself when relieving against forfeitures. Hill v. Barclay, 18 Ves. 63; Lovat v. Lord Ranelagh, 3 V. & B. 31; Davis v. Moreton, 2 Cha. Ca. 127; see Maddock's Cha. Prac. 2nd Edit. vol. 1, p. 31. SPENCER'S CASE. PASCH. 25 ELIZ.-IN THE KING'S BENCH. [REPORTED 5 COKE, 16.] Covenants.-What Covenants run with the Land. 282. 2 Bulstr. 281, Comberb. 64. Carth. 178. Skinner 211, 297. 3 Wilson 27. Cro. Jac. 459. SPENCER and his wife brought an action of covenant against Clark, assignee to J. assignee to S., and the case was such: Spencer and his wife by deed indented demised a house and certain land (in the right of the wife) to S. for term of twenty-one years, by which indenture S. covenanted for him, his executors, and administrators, with the plaintiffs, that he, his executors, adminstrators, or assigns, would build a brick wall upon part of the land demised, &c. S. assigned over his term to J., and J. to the defendant; and for not making of the brick wall the plaintiff brought the action of covenant against the defendant as assignee and after many arguments at the bar, the case was excellently argued and debated by the justices at the bench: and in this case these points were unanimously resolved by Sir Christopher Wray, Chief Justice, Sir Thomas Gawdy, and the whole court. And many differences taken and agreed concerning express covenants, and covenants in law, and which of them would run with the land, and which of them Moor 159. are collateral, and do not go with the land, and where the assignee shall be bound without naming him, and where not; and where he shall not be bound, although he be expressly named, and where not. 1. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the covenant is quodammodo annexed and appurtenant to the thing (a) Moor 27, 399. Cro. El. 457, 552, 553. 1 Rol.521,522. Postea 24. 1 Sand. 239. Cr. Jac. 125. 1 Jones 245. Salk. 185, 317. (b) Cr. El. 457. Cr. Car. 439. Dyer 14, pl. 69. 1 Anders. 82. Moor 159. (c) Cr. Car. 25, 188. 1 Jones 223. Moor 159, 399. (d) F. N. B. 135. d. demised, and shall go with the land, and shall bind the assignee (a), although he be not bound by express words: but when the covenant extends to a thing which is not in * being at the time of the demise made, it cannot be appurtenant or annexed to the thing which hath no being: as if the lessee covenants to repair the houses demised to him during the term, that is parcel of the contract, and extends to the support of the thing demised, and therefore is quodammodo annexed appurtenant to houses, and shall bind the assignee although he be not bound expressly by the covenant: but in the case at bar, the covenant concerns a thing which was not in esse at the time of the demise made (b), but to be newly built after, and therefore shall bind the covenantor, his executors, or adminstrators, and not the assignee, for the law will not annex the covenant to a thing which hath no being. 2. It was resolved that in this case, if the lessee had covenanted for him and his (c) assigns, that they would make a new wall upon some part of the thing demised, that 1 Rol. Rep. 360. forasmuch as it is to be done upon the land demised, that it should bind the assignee; for although the covenant doth extend to a thing to be newly made, yet it is to be made upon the thing demised, and the assignee is to take the benefit of it, and therefore shall bind the assignee by express words. So on the other side, if a warranty be made to one, his heirs and assigns, by express words, the assignee shall take benefit of it, and shall have a (d) Warrantia Charta, F. N. B. 135. & 9 E. 2; Garr' de Charters, 30. 36 E. 3; Garr' 1. 4 H. 8; Dyer 1. But although the covenant be for him and his assigns, yet if the thing to be done be merely collateral to the land, and doth not touch or concern the thing demised in any sort, there the assignee shall not be charged. As if the lessee covenants for him and his assigns to build a house upon the land of the lessor which is no parcel of the demise, or to pay any collateral sum to the lessor, or to a stranger, it shall not bind the assignee, because it is merely collateral, and in no manner touches or concerns the thing that was demised, or that is assigned over; and therefore in such case the Co. Lit. 384. b. |